On April 29, 2011, the Supreme Court of Canada released its decision in Ontario (Attorney General) v. Fraser holding that the Agricultural Employees Protection Act, 2002 ("AEPA"), which created a new and distinct industrial relations regime for agricultural workers, was constitutional. Fraser makes it clear that the guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter") does not require the enactment of a particular model of industrial relations or a particular model of collective bargaining.
The majority decision determined that the Court of Appeal had significantly overstated the scope of collective bargaining rights that are protected by section 2(d) of the Charter. Based on a much narrower approach to collective bargaining under the Charter, the majority concluded that the AEPA satisfies the applicable constitutional requirements because it provides agricultural workers in Ontario with a meaningful process by which they can pursue workplace goals. Justices Rothstein and Charron concurred in the result reached by the majority, but for quite different reasons. They would have reversed the Supreme Court's earlier decision in BC Health Services on the grounds that the decision, which established that section 2(d) of the Charter includes limited protection for collective bargaining, was wrongly decided and that the majority decision maintained an unworkable distinction between the process of collective bargaining and collective bargaining outcomes.
Fraser must be viewed as a significant retrenchment from the broad reasoning in BC Health Services. The Supreme Court emphasized that section 2(d) of the Charter requires that employees' associations be able to participate in a meaningful workplace process with an employer, which includes the right to make representations to the employer and to have those representations considered by the employer in good faith. In the Supreme Court's words, only legislation that "makes good faith resolution of workplace issues between employees and their employer effectively impossible" will violate section 2(d). Also notable is the Supreme Court's rejection of the Ontario Court of Appeal's determination that BC Health Services requires lawmakers to enact a particular labour relations model or specific statutory requirements in order to comply with section 2(d) of the Charter.